From Clinic to Courtroom: Navigating Forensic Audiology with Dr. Robert Traynor

Hello and welcome to another episode of this week in hearing. I’m your host, Brian Taylor, and this week our topic is forensic audiology. And I can’t think of anyone better to discuss this topic than Bob Trainor. You all know Bob is one of the co hosts of this week in hearing. And I’m betting that some of you probably didn’t know that Bob owns his own forensic audiology company. Bob is a wealth of information. Hes done a lot of different things. He’s very well known, he’s an expert in this field for sure. So welcome to the podcast, Doctor Bob Trainor. Thanks so much, Brian for that kind invitation, an extra kind invitation, by the way. Forensic audiology has been an aspiration of mine for many, many, many years. And I think that there are many colleagues out there that have similar aspirations. And so hopefully we can talk about some of those things that go into forensic audiology here during this particular episode. Okay, well, I guess that leads me to my first question for you, Bob, and that is, what is forensic audiology? Well the best definition of that was probably presented by Mark Kramer in his 1982 textbook called Forensic audiology. And well, Mark had co authored that with Joan Armbruster as well. But it was a great orientation by a number of different authors to at least a little bit about what forensic audiology is and what it does. In 1982, by the way, which is quite different than what it is today. But his definition was forensic audiology is the application of audiological knowledge through questions of law. That’s pretty much what we do, is we take our expertise, our education, and our orientation to specific areas within the field and focus that on a certain audiological case. Thats been a case of injury, usually, but not always. It could be a malpractice case, it could be a case of wrongful death. It could be a number of different types of cases. My colleague Tom powers does a lot of work in the patent area, small companies that think they just invented directional microphones. And Tom kind of helps them out with that a little bit, as you may know with his background at Siemens and over the years. And so there are things that we do that are usually pretty in depth. The problem with that is you need some experience to be able to do that, because you take not only your education, but you take your experience and then some focus of the experience that you may have, and put that directly into a case. I like to think about it as a funnel. You take all your education and your certifications and your licensure, put that with specializations in the practice and your experience. You take all that stuff and stuff it into a funnel, and then it goes down that tube right to the bottom, and then that’s focused right on a particular case. So I guess I’m kind of curious how you got started in this field. How did you maybe what was your inspiration to specialize in forensic audiology? Well, you know, first my first touch on it was Kramer and armistair’s book in 82. And I’m thinking, oh, that looks cool. But then as I started reading it, like many of my colleagues, I said, oh, no, no, I don’t think I want to do that. I don’t think I could do this, and I don’t think I could do that, and I don’t think I could, and I really don’t think I could stand when attorneys try to challenge what I’m trying to say. So my first orientation was, wow, that sounds cool, but certainly not yet. And then I had two or three patients over the years of practice that asked me to be an expert on their case. And of course, the first one or two are pretty interesting and difficult. And you don’t know exactly what you’re doing, and you really rely on the attorney to help guide you into what they need. And sometimes what they need isn’t what you want to say. But the idea is that I had some patients that really had some needs, just like they did with their impairment or their tinnitus or whatever. And so that was kind of how I got started. And after two, three cases, I sold my practice about five years ago. And the first thing I did was take a couple of courses from an expert witness training organization. I used seek as the as the group I used. But there’s a number of them around the country that are attorneys that have used expert witnesses over the years. And so they know what to tell us to do as we begin to work with our in the area of forensics. And in those cases, they overhauled my CV. We overhauled different things of how you approach cases, the kinds of things that we would be expected to do, and we could talk about that a little bit here later on. But so as you go through that, and then once you have the basics down, then you start writing your reports and it’s not your average college term paper on hearing loss or it’s not like talking about disorder and writing a paper for hearing journal or hearing review, or even a peer reviewed paper. It’s a little, it’s quite different. It can’t be as technical as the peer reviewed paper, but it’s probably got to have a whole lot more evidence behind it than some of the things that we may see in hearing review or hearing journal. Who’s the audience for a paper like that? Attorneys. The audience is our attorneys and the expert on the other side, by the way. So again, that’s part of what forensic audiologists do. So the audience is that, but the people that we’re there to work with as forensic audiologists are people that are called the triers of fact. Now, the next question is, who are the triers of fact? Because most of us aren’t that sophisticated in legal stuff. The triers of fact are really the jury and the judge. The jury gathers all finds out the facts in the case. Then the judge actually rules on the facts within the case. So we’re there to help explain things to the jury so they understand all the facts. And usually the judge is listening, the opposing attorney’s listening, and the retaining attorney, the people that hired you are all listening at the same time. The deal here is we’re there to kind of explain things. In fact John Laplante who’s a district judge in New Hampshire, was at one of the meetings I have been to, was saying that the system just couldn’t run without experts anymore. Imagine if you’ve ever sat on a jury and somebody started talking about knee joints, or they started talking about vision and some of the specifics that are going into those issues. And that can be quite demanding. So our goal is to explain the auditory system, synodus, possibly capd, possibly other components of what we do to the triers of fact. That’s kind of who the audience is that we’re presenting our material to. I see. Well I think my next question, Bob, is kind of along the lines of take us through a day in the life maybe describe a typical workday, or maybe describe a case and some of the analysis that goes into that. Well, the cases the kinds of cases we do can be quite a lot. You mentioned Tom with his, with his patent attorney kinds of cases. Jay hall does a lot of cases with cross checking individuals between the reliability and validity of abrs versus a audiometric evaluation for compensation purposes. There are colleagues that work with for example, Chris Spankevich is one of our group, and Chris was one of the general experts on the three cases with the three earplugs. Dennis Colucci is doing some things with the Department of Justice. And one of his cases deals with airplanes that are flying over a certain area of town and people are claiming tinnitus and hearing loss from that. And then that has been sent off to the Department of Justice to facilitate some sort of remediation for that. And so one of my cases was a wrongful death case. A person who crossed a train track and got rammed by a train and passed away as a result of that. And was that her fault or was that the engineer’s fault? Was that a problem with the way in which she was signaled? And as it turns out the engineer and conductors, everybody on the train did what they were supposed to do, but the person wasn’t paying attention and had the radio way turned up. And when the radio was way turned up, it masked out the train signal and the person got injured by the train. So then there’s always the airbag cases. And airbags are quite a personal injury anymore because, yes, it keeps you from dying in a. Crash. However the deployment of the airbag can be something that is pretty significant. It’s 165 decibels. And the ones that are the curtain ones right by your ear could be 178 decibels. So the idea is that many of these people end up with significant tinnitus and also some pretty good hearing impairment as a result of that. And it’s up to us to look at whether that’s injury created, or maybe they just rode a lot of motorcycles over the years, or maybe they went and sat in front of the Rolling Stone speaker and listened to people there. But there’s a lot of different issues that can come up that may mitigate whether or not that is a significant issue. One of the reasons that. Now, I’m not suggesting that I’m the only one, or that our group is the only ones that do forensic audiology. There’s still a significant number of audiology colleagues out in our community that do forensics as well. But the reason that audiology was not as looked upon as highly. Bye. Attorneys to be experts on their cases is that they would rather have an Ent physician be there who not know as much about the ramifications of certain things. But they had a doctorate and we didn’t at the time. Since the aud has been more prominent now we have the doctoral level credentials to facilitate and interact with what’s going on. And so I see us as audiologists, not necessarily trying to talk about surgery and all those kinds of issues and whether somebody got the right hospital to treatment and all those things, but certainly talking about the things that are within our discipline. No, I mean, I can see how the Aud credential would open some doors, but you still have to know your stuff. So I guess it sounds like you have to do an immense amount of reading so that you know what the evidence is to support whatever your side of the story might be. But besides reading a lot of journal articles and really knowing those kinds of facts, are there any other specific tools or technologies that you use as part of your forensic analysis? Well, yes. If you’re going to do tinnitus, you better be doing some questionnaires. If you’re going to be doing medical legal, audiological stuff. Let’s say you choose not to sit with the attorney and be a retained forensic expert, but yet you want to do you would like to do medical legal evaluations. There’s a lot more that goes into a medical legal hearing evaluation than just goes into somebody coming in for hearing aids. Such as, such as you need to do some cross checking just because they say they have a hearing loss that’s significant in certain frequencies, you may need to do some aBR and certainly need to do Oaesen. You also may want to do speech and noise and anything else that may come up that could be of concern. So the detail has to be there so that when you send that back to me I can actually use that and the literature that supports those tests to support that particular claimants case. So I’m just. So I’m kind of curious about this. It it sounds like, let’s take a hearing loss related issue, some kind of an ear problem. That person. If you’re a forensic audiologist, would you see that person for another evaluation where you might do as you suggest, oaes, abr reflexes, those kinds of things? Yeah, absolutely. Now, what I do, because I don’t have a clinic anymore, is I have colleagues that I feel comfortable with to send patients to their clinic so that they will do certain tests. For example, I have a case right now where the person went in and got a hearing test. Well, it was kind of like what you would expect somebody to do for a routine hearing aid. Hearing assessment for hearing aids, pure tone, airborne speech, and that’s about it. Whereas the individual is claiming that there’s some hearing loss and some tinnitus that goes along with this issue, and they needed to have all the other tests we just talked about to facilitate the handicap that’s associated with that injury. So you really have to, as we say, dot the I’s and cross the t’s and so on to ensure that the evidence that you’re presenting not only is evidence, because I’m an audiologist and I have all this expertise, but you need to have the backup literature to support that. And then, as the forensic audiologist, you need to look at that backup literature and ensure that, that it is of the conducted correctly to be able to support what you’re saying. Because not quite yet, on every case, once in a while, you have an audiologist on the other side that may have looked at those studies and said, well, this one isn’t any good. And this one isn’t any good. So what’s this guy trying to tell you? So you have to ensure that what you are presenting, not only in your report, but in testimony, is the truth and you can support it with evidence. And just because it’s printed doesn’t necessarily mean it’s evidence. You have to look through the studies to ensure that. Right? Exactly. Are there any. What other challenges? You mentioned that you’re starting to see more audiologists on the other side of the of the lawsuit, or whatever it might be, the litigation. Tell us a little bit more about that. I mean, you must run into colleagues once in a while that might be on the other side occasionally. There’s not a lot of that at this point in time because many of us don’t take cases that we don’t think are reasonable. And if someone I did have a case where where we found holes in some of our testing even after they had it had been done with what we thought was, was very what was, was, was very detailed. However after we looked at it pretty closely based on the other side’s testimony it wasn’t done as well as it should have been. Reliability validity and some of these kinds of issues were of concern. So again, it’s important that you set up your case and also then make sure that the individuals that are doing work for you on assessments, as well as those that have done work and you’re using their data and their, their research, make sure that that’s done correctly as well. So, and I think that’s the way to prepare yourself for maybe colleagues on the other side. I see. You mentioned several other well known audiologists Chris Spankevich Jay Hall, Tom Powers. Are you part of something like a collective where you work as part of the same organization? Are you independent contractors? How does that work? I’d like to say that we’re all in cahoots, but and I’d say that’s more or less the way we are at this point in time. We do talks together and we did a talk last year at AAA and this year we have another one proposed which hopefully will turn into actors as well as presenters. But the deal really is that we just have a group of colleagues that we know real well and feel comfortable if an attorney calls me, like I had an attorney the other day call me and wanted me to do something in cochlear implants, well, anybody who knows me would be able to fry me big time on cochlear implants. So I’m working on finding the attorney a referral for someone that does cochlear implant kinds of things. And one of the things they tell you almost every other day in these expert witness courses is stay within your wheelhouse. Well, to the attorneys, the wheelhouse simply means if you, if you have any doubts about your expertise in a certain area then you don’t go there. You want to make sure that you stay right within your, within your expertise. Makes your job as an expert, number one, a whole lot easier. Number two, it makes you much more wanted than than someone who kind of stretches it a little bit. I mean, when and the first time you take a case that may be really within your expertise might be challenging, because you have to go look up a few things here and there. I mean, my first malpractice case was a little bit of a concern. I knew that was within my expertise. But I had to look up a lot of things and digest a lot more material for that case, for example, than I would for the average airbag case, which I’ve done a number of times so far. These days I’m at about 100 cases. Dennis colucci is a little over that. Some of the other colleagues are here and there with their various cases. But the idea is, after you do a number of them, you really know where you’re doing really well and where you’re not going to do so well. So you stay away from the ones you’re not doing so well. Tell us about your experience on the witness stand. Like, how nerve wracking is that? How long have you been in a case? How long have you testified in a case? You must have some good stories. Well, you know, you never know what to expect. And when you’re going on the stand the attorney should prepare you. And on one of the three cases I did, the attorney called me up and said oh, yeah, you wanted to have a little preparation. Well, I think you’re going to do really well. And that’s great, and thank you very much. I’ll call you up after it’s over. And that’s all. There was another of the attorneys where we did 6 hours of preparation based on certain components within the case. Now, there is where you learned a huge amount. Like getting a private tutorial on how to do a deposition or how to testify at trial and so on. So you get anything from three minutes worth of preparation to 6 hours or so. And although 6 hours may be a lot particularly if you’ve been doing it for a while, it’s still, you learn so much from these guys as to how to interact within the system. Is there a shortage of forensic audiologists? You know, I always thought there was a whole lot of people out there doing it. But as it turns out, when in 22, when the private attorneys were looking for audiologists to work with their cases against three mh they were having very, they were having quite a bit of difficulty finding enough forensic audiologists to work with all the cases that they had. So my thought these days is that we need some colleagues that can take cases and interact with the attorneys and build up our reputation within the profession as valuable individuals that can help these triers of fact not only understand just the hearing loss, but understand not only hearing loss, but central auditory processing and tinnitus and many of the other. With pediatrics as well as adults as well as a lot of things, we have to build our own reputation in our profession. And so I do think that the more audiology colleagues that feel comfortable doing this kind of work and I might also just say that between you and me and the lamppost and our this week in hearing audience is probably one of the more lucrative components of audiology practice. I’m sure many of our listeners or many of our viewers will like to hear that. Maybe it’d be an incentive you bring up a really good point, though about good forensic audiologists really enhance the reputation of the profession. I never really thought about that, but it makes sense. As long as we stay in our wheelhouse. Yeah. As long as we present things and support it and assist these triers of fact in coming to good justified settlements, then you know, we don’t want people who are not guilty to have to pay, and we don’t want people who really got hurt to not obtain something out of this so that they get the rehabilitative treatment and all those things as well. I’m curious what would make a good forensic audiologist? What are the characteristics of somebody that would be really good at this profession? You know, there’s a great little video that you can pull out of that the group could pull out. It’s online it’s put out by James Mangroveni and Steve Babinski. And it’s from seek. And there’s one that says, who should be a forensic audiologist. And it talks about the fact that, number one, you need to have a lot of expertise in a particular field. In other words, you don’t just do this right out of school. That is, unless you have just focused on a particular, maybe research project, and this case hits that. But you need to have a breadth of experience and then some focus within the profession to do that. So that’s one. Secondly, you need to have a thick skin because just because someone says that you don’t know what you’re talking about, you can’t let that get to you. Too bad. And cross examination is probably with. Or under cross examination. Right. And another one is you can’t have any, what the attorneys call legal baggage. You can’t have your license revoked a couple of years ago for malpractice. You can’t have a perjury conviction and those kinds of things. And so, and there are a number of other little things that go on to it as well. But those are the big ones, I think. And so it sounds like a good next step for somebody that would be interested in this would be to go to the website that you mentioned. Yes That isn’t a website. That’s a video. I think it’s on YouTube someplace. But the idea is that I think the proper way to become involved with this is, first of all, to have all that experience and stuff we’ve talked about. Secondly, then, once you’ve decided, okay, I think I’m going to do this, well, maybe look at there’s a great book right now out in forensic audiology. And I wonder who wrote that. I wonder who wrote that. Here it is right here. This is exactly a time to put a plug in for your book. Oh, well, here’s the plug again. Its forensic audiology. It’s out of plural publishing. But. But I think the thing is, if you think you may want to do it, that’s the first thing would be good, just to kind of look through it, because what it does is it talks about a little bit about where experts came from, but more than that, I had no idea the difference between a state court and a federal court and the district court and this one and that one. It also talks about that. Plus it talks a little bit about how to write a report, a little bit about interacting with attorneys talks a little bit about civil cases versus criminal cases, quite different. Now. We do a lot of civil cases, I’d say, and 95% of the civil cases go don’t ever go to court. Theyre mediated almost always. About 3% of them actually go to court. The criminal cases, they are plea bargained, almost all of them. So we don’t see very many of those. But I have had both sides, criminal and civil cases. But the book kind of explains a little bit of the differences, and then it talks about how to write a report. And then probably the big one, it talks about depositions and trials. The hardest part of this whole thing is standing at deposition where there’s no judge, just the, your attorney, you, and the opposite attorney, and somebody recording it for the court. And so there isn’t somebody they can’t stand up, like on perry mason, and say, I object. All they can do is kind of whisper a little bit of an objection to the way the question is formed in a deposition. Now, in a trial, those are actually easier than the depositions and the trial. They can do the formal objections, and then the judge rules from the deposition statements. The judge will rule on whether that was a fair question or whether it wasn’t as they review those depositions. So testimony, particularly for depositions, is probably the hardest part of the whole thing, because if you answer a question wrong, oh, my golly then the other attorney can go down two or three other little rabbit holes, and then you get tongue tied, and then you lose and they win. Yeah, I can imagine that would be a little bit of a challenge. My last question, Bob, before I let you go. Sure. Any other final thoughts about forensic audiology for those that might be interested in this? Well, again, I think the best thing you can do is, is be an expert in a certain area, then go take a seek course or two. Not necessarily seek, but one of the expert witness training courses, because you get an orientation to this part of the discipline. And then from there, get a case or two. And the first couple of cases are challenging. But usually, if you have the right expertise and you feel comfortable in your expertise, then you’ll usually do a pretty good job. You may want to tweak your report a little bit after the first couple of cases. You may want to tweak how you do your depositions. You may want to tweak this and that and in the interactions with the attorneys and so on, but generally with the right orientation from the people to train experts. You’ll begin to get a feel for what we do. And again, I think this is a area of the discipline. Just like when we all went into private practice in the late seventies and early eighties that elevated the profession. Here we are in another component of our discipline that will also, if we do it correctly and we do it right it will elevate the profession to another level on par with many of the other doctoring level professions that are out there. That’s really good advice. You mentioned this acronym, seek. Am I saying that right? What’s that stand for? It doesn’t stand for anything. It’s just as I understand it, somebody told me it was the first initial of the person who founded the company’s kids. So it doesn’t stand for anything. Hows it spelled? Seakseakcak.com. Dot. And one of the other things that you get out of these courses is you get the proper way in which to interact with the attorneys initially, because you should have a retention contract, you should collect a retainer. You should also again, take send a w nine with your retainer, with your retainer request, and on and on. And those are things that you learned in the expert witness training courses, and that’s why it’s so important. Understood. All right. Thank you doctor Bob Trainor, forensic audiologist. And we’re author of the book forensic audiology, I should say co author. Right, Bob? Co author, that’s correct, yes. Krista offers some good advice. She was an audiologist and a regulatory affairs audiologist as well. And so by the time we put our heads together on some cases the detail is really important. And I’m not as detail oriented as a regulatory affairs audiologist would be. So this has been quite a, quite a great experience for both of us. It sounds like your skills complement each other. We certainly hope so. Well, again, Bob, thanks for your time. It’s great to see you. Good to see you, sir.